📖 A Note on Section 32 of the Evidence Act – Dying Declarations & Key Supreme Court Judgments

⚖️ The Indian Evidence Act, 1872: Section 30

Confession affecting others jointly under trial

• When more persons than one are being tried jointly for the same offence and a confession made by one of them affecting himself and some others is proved, Court may take into consideration such confession as against such other persons as well as against the person making it.

📌 Illustration (a)

A and B are jointly tried for murder of C. It is proved that A said, “B and I murdered C”. Court may consider the effect of this confession as against B.

📌 Illustration (b)

A is on his trial for murder of C. There is evidence to show that C was murdered by A and B and B said—”A and I murdered C”.
This statement may not be taken into consideration against A as B is not being jointly tried.

📝 Section 31 – Admission not conclusive proof but may estop

Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under provisions hereinafter contained.

Estoppel is a judicial device whereby a court may prevent or “estop” a person from making assertions or from going back on his word.

💀 Section 32 – Dying Declarations

Statement by person who is dead or cannot be found

Statements, written or verbal, on relevant facts made by a person:

• who is dead
• who cannot be found
• who has become incapable of giving evidence
• whose attendance cannot be procured without unreasonable delay or expenses

are themselves relevant facts in the following cases…

☠️ (1) When it relates to cause of death

When the statement is made by a person:

• as to the cause of his death
• as to any circumstances of the transaction which resulted in his death

in cases in which the cause of that person’s death comes into question.

❓ Q. What is the rationale behind this provision?

📖 Case Study: Khushal Rao v. State of Bombay [1958 SC]

• This provision has been made as a matter of sheer necessity, by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination is not admissible.
• The purpose of cross-examination is to test the veracity of the statements made by a witness. That test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies.
• As distinguished from the English law, Section 32 does not require that such a statement should have been made in expectation of death. Such statements are relevant whether the person who made them was or was not under expectation of death at the time when they were made.
• In order to pass the test of reliability, a dying declaration has to be subjected to very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing its veracity by cross-examination.

❓ Q. Can it be said that a dying declaration cannot form the sole basis of conviction unless it is corroborated?

Ans: It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.

❓ Q. Is a dying declaration a weaker kind of evidence than other pieces of evidence?

Ans: It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged with reference to the principles governing weighing of evidence.

🔎 Factors for Testing Reliability of a Dying Declaration

In order to test reliability of a dying declaration, court has to keep in view circumstances like the opportunity of the dying man for observation. For example:

• whether there was sufficient light if the crime was committed at night
• whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement
• whether the statement has been consistent throughout if he had several opportunities of making a dying declaration
• whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties

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